Customs, Excise and Gold Tribunal - Mumbai
T.T.K. Healthcare Ltd. vs Commissioner Of Central Excise on 13 July, 2005
ORDER S.S. Sekhon, Member (T)
1. Heard both sides & set the matter & it is found -
a) There is absolutely no dispute between the Appellants and the department in respect of the classification of the Foley Balloon Catheters i.e. under Chapter heading 90.18 of the Tariff Act, and therefore the same, would be covered by Serial No. 43 of Notification no 10/2002 Dated 1st March 2002
b) Serial no 43 of the notification grants the benefit of the concessional rate of duty to all goods falling under Chapter heading 90.18 of the Tariff Act. The exclusion is only in respect of Entry no 42 of the table to the said notification and not an exclusion from the purview of the notification itself.
c) Once it is undisputed positions that Foley Balloon Catheters are classified under chapter heading 90.18 of the Tariff Act, then they are entitled to the benefit of the concessional rate of duty in terms of serial no 43 of notification and there is no need to see serial no 42, which contains an Explanation to the effect that Foley Balloon Catheters are excluded. Since serial no 43 of the said notification is very specific, in as much as it grants concessional rate of duty only to those goods, which are classifiable under chapter heading 90.18 of the said tariff Act, whereas serial no 42 is very general, in as much as it grants concessional rate of duty to all goods falling under chapter 90 or any other chapter. A specific entry would be preferred & prevails over a general entry is the law. We would prefer specific entry.
d) The language used in the exclusion clause in the said Explanation to serial no 42 reads as: "For the purposes of this explanation ..." and does no read as "For the purposes of this exemption Notification ...". Therefore, the Explanations exclusion, has to be confined to serial no 42 alone and cannot be read to mean that it applies to each and every Entry in the said notification.
f) The Hon'ble Supreme Court in a catena of judgments has held that an exemption notification has to be read as a whole and not in a piecemeal manner. The test of strict construction of exemption notification applies at the entry, that is, whether a particular goods is capable of falling in one or the other category but once it falls then the exemption notification has to be construed broadly and widely. We approve the reliance placed on.
Union of India v. Wood Papers Ltd.
Bombay Chemical Ltd. v. Collector of Central Excise Collector of Central Excise, Bombay 1 and Anr. v. Parle Exports (P) Ltd To arrive at grant of notification benefit under entry at sr. no 43.
2. In view of the findings hereinabove we find no merits to deny the benefits to the exemption to Foley Balloon Cathetin falling under heading 90.18, vide serial no 43 in table to notification 10/2002. 2.1 In view of the findings the Order is set aside and the appeal is allowed.